Opinion | Law and Order – Policy vs Reality

Opinion | Law and Order – Policy vs Reality

By Yvette Brennan

‘Tough on crime’ rhetoric is common among journalists, politicians and Facebook posts. With the increasing media coverage on “ram-raids” and guns, law and order has resurfaced as the controversial dinner table topic, but what does being tough-on-crime actually mean? 

The phrase itself can be translated quite simply; longer sentences and harsher punishments will rid the streets of crime and restore safety to the public! Well – that’s the idea. The reality is not so simple. The core purpose of the criminal justice system is to prevent offending/reoffending, yet a meta-analysis of 116 studies suggest imprisonment has no deterrence effect at all[1]. These studies also analyse the connection between imprisonment and reoffending.

Imposing longer sentences, on the grounds that our current sentencing does not reflect the ‘seriousness’ of crimes being committed [2], acts as retribution and can lead to over-punishment. Retribution focuses solely on punishing the individual for the wrongful act they committed rather than preventing future harm for the benefit of the community [3]. Although some might argue that retribution is justice, the commonly agreed purpose of the criminal justice system is accountability, general deterrence and increasingly, rehabilitation [4].

Several parties advocate strongly for a tough-on-crime response, proposing several policies which highlight the disconnect between purpose and effect.

The National and Act Party both propose to re-enact the ‘three strikes’ law. Under this law, if a person is convicted with a third serious violent offence, then they must be sentenced the maximum penalty for that offence without parole [5]. The law is often described as a failed experiment because of the disproportionately unjust outcomes, particularly on Pasifika and Māori who accounted for more than fifty percent of the strikes [6].

Again, the evidence in Aotearoa and other jurisdictions where the law was trialled strongly suggest against a deterrent effect [7]. The three strikes policy is a prime example of where tougher sentences do not create safer outcomes for the community.  

In addition to three strikes, the National Party propose to create Young Offender Military Academies where 15-17 year olds who are deemed as serious offenders can be sent for up to 12 months [8]. The purpose is to remove ‘young repeat offenders’ from the ‘negative environment that is driving their offending’ [9]. The effect, however, would see them returned to the same environment post-academy.

The harsh punishment, sugar-coated as rehabilitation, would assume up to 12 months away from ordinary school, isolation from existing support systems, and the opportunity to fraternise with other youth offenders. It is not difficult to envision the several potholes in this policy; there is no evidence to support its success, and the exact disciple to be used is unspecified. 

The Labour Party proposes a new criminal offence targeting ram-raiding, with a maximum imprisonment term not exceeding 10 years [10]. This offence would not change the penalty for adult offenders (burglary and robbery has the same term [11]), rather it would allow 12 and 13 year-olds to be dealt with under the youth justice system [12]. Ordinarily, children are only dealt with under the system if they are suspected of committing murder, manslaughter, a serious offence (maximum imprisonment term of at least 14 years) or repeat serious offending [13].

This puts burglary or robbery in which a vehicle has been used on the same level of accountability as the offences listed above [14]. Children are products of their environment and being put through the system is unlikely to change the factors that led to the offending. National’s proposal to create a Young Serious Offender category (10-17 years old) also reflects this disconnection between cause and effect [15]. This policy focuses primarily on stronger sentences and consequences for youth rather than prevention.

So, what does being tough-on-crime, to prevent future crime, actually look like? 

There is no denying that crime is a problem and existing policies need reform. The solution is complex and multifaceted. It will require genuine public participation, consultation, research and trials. It is crucial that the government implements policies that effectively assess and address the root causes of offending, while also investing in access to rehabilitation. It is time we move away from being ‘tough on crime’ to being smart on crime [16]. 


[1] https://www.criminallegalnews.org/media/publications/Custodial_Sancations_and_Reoffending_-_A_Meta-Analytic_Review_2021.pdf

[2] https://www.national.org.nz/national_to_toughen_sentences_to_counter_crime_wave

[3] https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-7/key-issues/2–justifying-punishment-in-the-community.html#/:~:text=rehabilitation%20and%20reparation.-,Retribution,proportional%20to%20the%20wrong%20committed

[4] https://www.justice.govt.nz/justice-sector-policy/regulatory-stewardship/regulatory-systems/criminal-law/

[5] https://communitylaw.org.nz/community-law-manual/chapter-33-the-criminal-courts/sentencing-the-judges-decision-about-punishment/the-three-strikes-law-for-repeated-serious-violent-offending/#:~:text=The%20“three%20strikes”%20law%20is,for%20that%20offence%20without%20parole

[6] https://www.auckland.ac.nz/en/news/2022/08/15/three-strikes–the-end-of-a-failed-experiment.html

[7] https://www.auckland.ac.nz/en/news/2022/08/15/three-strikes–the-end-of-a-failed-experiment.html

[8] https://assets.nationbuilder.com/nationalparty/pages/17862/attachments/original/1684306248/CYO.pdf?1684306248

[9] https://assets.nationbuilder.com/nationalparty/pages/17862/attachments/original/1684306248/CYO.pdf?1684306248

[10] https://www.rnz.co.nz/news/political/494182/the-week-in-politics-labour-strikes-back-who-s-soft-on-crime-now

[11] https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM330242.html

[12] https://www.stuff.co.nz/national/politics/132572766/new-ram-raid-law-to-charge-12-year-olds-new-offence-with-up-to-10-years-jail

[13] https://youthlaw.co.nz/rights/police-the-youth-justice-system/the-youth-justice-system/

[14] https://www.police.govt.nz/advice-services/businesses-and-organisations/retail-crime-prevention-hub/victims-ram-raids-aggravated-robbery#:~:text=A%20ram%20raid%20is%20a,the%20offender%20had%20a%20weapon

[15] https://assets.nationbuilder.com/nationalparty/pages/17862/attachments/original/1684306248/CYO.pdf?1684306248

[16] https://ojs.victoria.ac.nz/pq/article/view/6485/5633

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